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Court of AppealDismissedApplication dated 21st November 2025

Oduor v Meritei & 2 others (Civil Application E695 of 2025) [2026] KECA 845 (KLR)

Court of Appeal
30 April 2026
1,266 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal refused to stop an eviction order against 62 occupants, ruling their appeal stood no real chance of success.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi on an application dated 21st November 2025 brought under rule 5(2)(b) of the Court of Appeal Rules, 2022, by Maurice Oundo Oduor and 61 others seeking a stay of execution of a Ruling of the Environment and Land Court at Kajiado (L. Komingoi, J.) delivered on 13th November 2025 in ELC Case No. E002 of 2021. That Ruling directed the applicants to vacate parcel Kajiado/Kaputiei North/6386 within thirty days, failing which eviction would follow with police assistance from the OCS Kitengela. The applicants, who had lodged a Notice of Appeal dated 18th November 2025, contended that the intended appeal was arguable - raising alleged misdirection on review principles under Order 45 of the Civil Procedure Rules, failure to balance proportionality and hardship in ordering mass eviction, and improper direction for police assistance - and that eviction would render the appeal nugatory through demolition of dwellings and permanent dispossession. The respondent maintained he was entitled to the fruits of his judgment. Applying the twin principles in Stanley Kangethe Kinyanjui v Tony Ketter, the Court held the intended appeal was directed not at the substantive judgment but at the dismissal of a review application, and that criminal acquittals do not extinguish civil liability, so no bona fide issue was raised. On the nugatory limb, the Court found the balance tilted in favour of the respondent's right to enjoy the fruits of his judgment, the applicants having failed to show damages would be inadequate. The application was dismissed with costs to the respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the intended appeal is arguable
  2. 2.Whether the intended appeal will be rendered nugatory if stay is not granted

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The intended appeal, being directed against the dismissal of a review application rather than the substantive judgment, raised no bona fide issue worthy of consideration.

Reasoning

The Court accepted the respondent's submission that the appeal was not against the substantive judgment but against the dismissal of a review application. Criminal acquittals relied upon as new evidence for review cannot found an arguable appeal because criminal and civil proceedings are distinct and an acquittal does not invalidate civil findings. The Court therefore was not persuaded that any bona fide point of law or fact was raised.

p. 3
02

Whether the appeal would be rendered nugatory if stay is not granted

Holding

The nugatory principle cuts both ways; the respondent's right to enjoy the fruits of his valid judgment tilted the balance against the applicants, who did not show damages would be inadequate.

Reasoning

Although eviction might cause hardship to the sixty-one applicants, the respondent held a valid judgment entitling him to possession. The applicants had not demonstrated that damages would be inadequate, and the respondent was financially able to comply with any orders should the appeal succeed. The Court applied Reliance Bank Ltd v Norlake Investments on balancing the successful litigant's rights against the right of appeal.

p. 3

Legal principles established

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  • An applicant under rule 5(2)(b) must satisfy both limbs: that the appeal is arguable and that it will be rendered nugatory if stay is not granted.
  • Criminal and civil proceedings are distinct and governed by different standards of proof; a criminal acquittal does not extinguish civil liability nor invalidate civil findings.
  • The right of a successful litigant to enjoy the fruits of judgment must be balanced against the right of appeal when considering the nugatory limb of rule 5(2)(b).

Court orders

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  1. 1.Dismissal of the notice of motion dated 21st November 2025
  2. 2.Costs of the application to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
Environment and Land Court at Kajiado
ELC Case No. E002 of 2021
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules, 2022

Relief refused

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Stay of execution of the Ruling and Orders of the Environment and Land Court at Kajiado delivered on 13th November 2025

The applicants failed to satisfy both limbs of the rule 5(2)(b) test: the intended appeal was not arguable and no nugatory aspect was demonstrated

p. 3

Costs

The notice of motion dated 21st November 2025 is dismissed with costs to the respondent.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The applicant must satisfy both limbs: first, that the appeal is arguable, and second, that the appeal will be rendered nugatory if stay is not granted.
p. 3Rule 5(2)(b) twin principles
The nugatory principle cuts both ways. While eviction may cause hardship to the applicants, the respondent has a valid judgment in his favour which entitles him to enjoy the fruits thereof.
p. 3Nugatory limb and fruits of judgment
In the result, we find that the applicants have failed to satisfy the twin principles under rule 5 (2) (b) of this Court's Rules. Accordingly, the notice of motion dated 21st November 2025 is dismissed with costs to the respondent.
p. 3Final orders and dismissal

Issues in the judgment

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minor

The judgment refers to the impugned Ruling as delivered on 13th November 2025, but the respondent's submissions state that 'the substantive judgment of 14th November 2024 was never appealed against' - a substantive judgment of 14th November 2024 is not otherwise described in the judgment, creating uncertainty as to the sequence of decisions under appeal.

minor

The coram lists D. K. Musinga with the designation '(PRESIDENT)' and the signature block reads 'JUDGE OF APPEAL'; the printed rank designations are inconsistent with the title line, though all three judges appear as Judges of Appeal.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Oduor v Meritei & 2 others (Civil Application E695 of 2025) [2026] KECA 845 (KLR)", Case Analysis (2026). Application dated 21st November 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/845/eng@2026-04-30

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.